General Damages under Rule 14.05 (Civil)

Tri Huynh et al v. Alice Wan Lau, 2011 ONSC 3417 (CanLII)

[15] The parties rely on Rule 14.05(3)(c) and (h) which provide as follows:

14.05(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,

(c) the removal or replacement of one or more executors, administrators or trustees, or the fixing of their compensation;

(h) in respect of any matter where it is unlikely that there will be any material facts in dispute.

[16] It is clear that R.14.05(3) permits this Court to make the declaration sought. It is equally clear, based on R.14.05(3) and the caselaw interpreting this rule, that this Court does not have jurisdiction to make an award for general damages or to make an order where the materials facts are in dispute.

[17] I am guided by the decision of the Divisional Court in Hefford v. Charpentier, 2009 CanLII 21761 dated March 13, 2009. In that case, the Applicant sought a declaration of trespass, and general and punitive damages with respect to a property dispute. The Court held that:

“A claim for damages, particularly based on disputed facts, does not fall within rule 14.05(3) and is therefore, not properly bought by way of Application…

…

Accordingly, the hearing of this case as an Application under Rule 14.05(3)(e) flies in the face of well established case law that holds that Rule 14.05(3) is not available for the resolution of general and punitive damage claims.”

…

There must be a trial of an issue as to the Respondent’s entitlement to general and/or punitive damages”.

Hefford v. Charpentier, 2009 CanLII 21761 (ON SCDC)

[3] The appellant submits that the Application process envisioned by Rule 14.05(3) does not permit the adjudication of claims in trespass where material facts are in dispute, nor does it contemplate a dispute where general, non-liquidated damages and punitive damages are sought.

[4] The respondent submits that it was conceded before McIsaac J. that a trespass had been committed and therefore the material facts were not in dispute.

...

[24] Numerous authorities have been cited by counsel for the appellant, for the proposition that general and punitive damages are not the types of relief available under Rule 14.05. For instance, in Ontario (Minister of Natural Resources v. Holdcroft), [2004] O.J. No 697, the court held that it was “not permitted to claim damages in an application under the Rules”. In Dovale v. Metropolitan Toronto Housing Authority, 2001 CanLII 28024 (ON SC), [2001] O.J. No. 473, Molloy J. struck out paragraphs of the Notice of Application dealing with damages and directed that these claims should be pursued by way of action. She stated at para. 12;

A claim for damages, particularly based on disputed facts, does not fall within rule 14.05(3) and is therefore not properly brought by way of application.

[25] Similar language may be found in Rintoul v. Mississippi Mills (Town), [2005] O.J. No. 4844. and in Boreal Insurance Inc. v. Lafarge Canada Inc., 2004 CanLII 66335 (ON SC), [2004] O.J. No. 1571.

[26] Accordingly, the hearing of this case as an Application under Rule 14.05(3)(e) flies in the face of well established case law that holds that Rule 14.05(3) is not available for the resolution of general and punitive damage claims.

[27] In the circumstances, the order of McIsaac J. must be set aside with the exception of the declaration "that John Hefford has trespassed on the Applicant's property". There must be a trial of an issue as to the respondent's entitlement to general and/or punitive damages. The parties are invited to consider whether this issue should be tried in Small Claims Court.

Massalin v Garcia, 2016 ONSC 5945 (CanLII)

[3] Rule 14.05(3)(a) - (h) states that proceedings may be brought by application when certain types of relief are claimed. Given the nature of this dispute, only (g) and (h) are applicable.

[4] The applicants state that they are requesting a mandatory order, which falls within (h) being specific performance. If the respondents took issue with the manner of proceeding, they should have raised it earlier. Cross-examinations have been held. The parties are ready to argue the application. The respondents should have brought a motion if their position was that this application should be converted to an action.

[5] The respondents state that many material facts are in dispute. Counsel wrote to counsel for the applicant three times asking what authority was being relied upon for the applicants’ entitlement to bring these proceedings by way of application. The last letter from the respondents was dated June 8, 2016. The respondents also state that it is not their responsibility to see that the applicants used the proper originating process.

[6] Rule 1.04 states that the Rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. Ordinarily, when certain facts are in dispute, an action is the proper way to proceed. Here, cross-examinations have been conducted. The respondents’ waiting until the application was immediately before the court and then raising the issue of whether this matter should proceed by way of action is inappropriate. I find that converting this application to an action at this stage would not accomplish the mandate set out in Rule 1.04.